, = ~ Pain as the Primary Impairment-Moving from the Subjective to the Objective Section BB Pain as the Primary Impairment Moving from the Subjective to the Objective Thelma Cohen, Esq. Lawrence Miller, MD Pain: /I a state of physical or mental lack of well-being or physical or mental uneasi- ness that ranges from mild discomfort or dull distress to acute often unbearable agony, may be generalized or localized, and is the consequence of being injured or hurt physically or mentally or of some derangement of or lack of equilibrium in the physical or mental functions (as through disease), and that usually produces a reac- tion of wanting to avoid, escape, or destroy the causative factor and its effects ... " -Webster's Third New International Dictionary, unabridged, 2002 I/Pain is whatever the experiencing person says it iS existing whenever he says it does" I -Margo McCaffery, nurse and pioneer in the field of pain medicine, 1968 I Pain plays a significant role in the practice of Social Security Disability law. Most people claiming disability are impacted to one degree or another by pain. It is our job as attorneys and representatives to take the subjective experience and prove its reality. Properly established, pain in and of itself may justify a grant of disability under the Social Security Act A large body \ of law, regulatory and case, provides guidance on the type. and quantum of proof necessary to I convince the Social Security Administration that your client's pain is real and disabling. II Generally, the claimant must first establish the existence of a medically determinable impair- ment In other words, the pain has to be associated with, or attached tO,an objective condi- tion. Once that is done, pain can be described through testimony, with a description of its impact on functional activity. Testimony about pain can (and should) be bolstered with descrip- tions of the pain in medical chart notes, in the Third Party Questionnaire, and in testimony of other witnesses. Pain can reduce a claimant's function in both exertional and non-exertional ~ l ways. It can cause fatigue, reduced concentration and irritability, along with reduction in abili- ty to sit, stand, walk, lift, etc, due to avoidance of activities which trigger pain. There are also i I issues connected with use of pain medications, such as drowsiness or stomach upset. Familiarity with the specific pain regulations is critical when preparing your case, as the ~. presentation of evidence should be tailored to the Social Security Administration's method of i evaluation. Following are the central regulatory provisions concerning pain. 1 l \ •• 79J .. _ ~ t.:" Section BB NATIONAL SOCIAL SECURITY DISABILITY LAW CONFERENCE The Social Security Act discusses pain in its definition of disability at 42 use 423: "An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as .the Commissioner of Social Security may require. An individual's statement as to pain or other symptoms .shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impair- ment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a con- clusion as to whether the individual is under a disability." 42 USC 423(d)(5)(A) (emphasis added) Regulation 20 CFR 404.1529 details how pain is to be evaluated: "(a) General. In determining whether you are disabled, we consider all your symptoms, including pain, and the extent to which your symptoms can reasonably be accept- ed as consistent with the objective medical evidence and other evidence .... These include statements or reports from you, your treating or nontreating source, and oth- ers about your medical history, diagnosis, prescribed treatment, daily activities, efforts to work, and any other evidence showing how your impairment(s) and any related symptoms affect your ability to work. We will consider all of your statements about your symptoms, such as pain, and any description you, your treating source or nontreating source, or other persons may provide about how the symptoms affect your activities of daily living and your ability to work. However, statements about your pain or other symptoms will not alone establish that you are disabled; there must be medical signs and laboratory findings which show that you have a medical impairment(s) which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all of the other evidence (including statements about the intensity and persistence of your pain or other symp- toms which may reasonably be accepted as consistent with the medical signs and laboratory findings), would lead to a conclusion that you are disabled. In evaluating the intensity and persistence of your symptoms, including pain, we will consider all of the available evidence, including your medical history, the medical signs and lab- oratory findings and statements about how your symptoms affect you .... We will then determine the extent to which your alleged functional limitations and 792 ...~. '. .. :!"-,_.... I i Pain as the Primary Impairment-Moving from the Subjective to the Objective Section BB restrictions due to pain or other symptoms can reasonably be accepted as consis- tent with the medical signs and laboratory findings and other evidence to decide how your symptoms affect your ability to work. (b) Need for medically determinable impairment that could reasonably be expected to produce your symptoms, such as pain. Your symptoms, such as pain, fatigue, shortness of breath, weakness, or nervousness, will not be found to affect your ability to do basic work activities unless medical signs or laboratory findings ::,' I ," show that a medically determinable impairment(s) is present. ... At the adminis- trative law judge hearing or Appeals Council level of the administrative review process, ... the adjudicator(s) may ask for and consider the opinion of a medical .'. " or psychological expert concerning whether your impairment(s) could reasonably be expected to produce your alleged symptoms. The finding that your impair- ment(s) could reasonably be expected to produce your pain or other symptoms does not involve a determination as to the intensity, persistence, or functionally limiting effects of your symptoms. . . . , (c) Evaluating the intensity and persistence of your symptoms, such as pain, and determining the extent to which your symptoms limit your capacity for work- (1) General. When the medical signs or laboratory findings show that you have a medically determinable impairment(s) that could reasonably be expected to produce your symptoms, such as pain, we must then eva:luate the intensity and persistence of your symptoms so that we can determine how your symp- toms limit your capacity for work. In evaluating the intensity and persistence I of your symptoms, we consider all of the available evidence, including your history, the signs and laboratory findings, and statements from you, your I treating or nontreating source, or other persons 'about how your symptoms affect you. We also consider the medical opinions of your treating source and other medical opinions as explained in § 404.1527 .... (2) Consideration of objective medical evidence. Objective medical evidence is evidence obtained from the application of medically acceptable clinical and laboratory diagnostic techniques, such as evidence of reduced joint motion, muscle spasm, sensory deficit or motor disruption. Objective medical evi- dence of this type is a useful indicator to assist us in making reasonable con- clusions about the intensity and persistence of your symptoms and the effect those symptoms, such as pain, may have on your ability to work. We must always attempt to obtain objective medical evidence and, when it is obtained, we will consider it in reaching a conclusion as to whether you are disabled, However, we will not reject your statements about the intensity ,j and persistence of your pain or other symptoms or about the effect your I symptoms have on your ability to work solely because the available objec- ::\ ' tive medical evidence does not substantiate your statements. (3) Consideration of other evidence. Since symptoms sometimes suggest a greater 'j severity of impairment than can be shown by objective medical evidence 1 f J 1 I 793 • ,:1:: L '.", ! ~-------------- •••• -------- ................ •••••••••••••••••• _ "-':-:"'.,.:.. "':':.' . '--::0 :, - , Section BB NATIONAL SOCIAL SECURITY DISABILITY LAW CONFERENCE alone, we will carefully consider any other information you may submit about your symptoms. The information that you, your treating or nontreating source, or other persons provide about your pain or other symptoms (e.g., what may precipitate or aggravate your symptoms, what medications, treatments or other methods you use to alleviate them, and how the symptoms may affect your pattern of daily living) is also an important indicator of the intensity and per- sistence of your symptoms. Because symptoms, such as pain, are subjective and difficult to quantify, any symptom-related functional limitations and restrictions which you, your treating or nontreating source, or other persons report, which can reasonably be accepted as consistent with the objective medical evidence and other evidence, will be taken into account as explained in paragraph (c)(4) of this section in reaching a conclusion as to whether you are disabled. We wi II consider all of the evidence presented, including information about your prior work record, your statements about" your symptoms, evidence submitted by your treating or nontreating source, and observations by our employees and other persons. Section 404.1527 explains in detail how we consider and weigh treating source and other med- ical opinions about the nature and severity of your impairment(s) and any related symptoms, such as pain. Factors relevant to your symptoms, such as pain, which we will consider include: (i) Your daily activities; (i i) The location, duration, frequency, and intensity of your pain or other symptoms; (iii) Precipitating and aggravating factors; (iv) The type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms; (v) Treatment, other than medication, you receive or have received for relief of your pain or other symptoms; (vi) Any measures you use or have used to relieve your pain or other symp- toms (e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.): and (vii) Other factors concerning your functional limitations and restrictions due to pain or other symptoms. (4) How we determine the extent to which symptoms, such as pain, affect your capacity to perform basic work activities. In determining the extent to which your symptoms, such as pain, affect your capacity to perform basic work activ- ities, we consider all of the available evidence described in paragraphs (c)(l) through (c)(3) of this section. We will consider your statements about the intensity, persistence, and limitingeffects of your symptoms, .and we will eval- uate your statements in relation to the objective medical evidence and other evidence, in reaching a conclusion as to whether you are disabl~d: We will consider whether there are any inconsistencies in the evidence and the extent 794 Pain as the Primary Impairment-Moving from the Subjective to the Objective Section BB to which there are any conflicts between your statements and the rest of the evidence, including your history, the signs and laboratory findings, and state- ments by your treating or nontreating source or other persons about how your symptoms affect you. Your symptoms, including pain, will be determined to diminish your capacity for basic work activities to the extent that your alleged functional limitations and restrictions due to symptoms, such as pain, can rea- sonably be accepted as consistent with the objective medical evidence and other evidence." Ruling 95-5p is especially helpful: "Symptoms, such as pain, fatigue, shortness of breath, weakness, or nervousness, are the individual's own description of the effects of a physical or mental impairment(s) .... Because symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, careful consideration must be given to any available information about symptoms. The RFC assessment or, in the case of an individual under age 18 claiming benefits based on disability under title XVI, the IFA, must describe the relationship between the medically deter- minable impairment(s) and the conclusions regarding functioning which have been derived from the evidence, and must include a discussion of why reported daily activity limitations or . restrictions are or are not reasonably consistent with the medical and other evidence. In instances in which the adjudicator has observed the individual, the adjudicator is not free to acceptor reject that individual's complaints solely on the basis of such personal obser- vations. Rather, in all cases in which pain or other symptoms are alleged, the determination or decision rationale must contain a thorough discussion and analysis of the objective med- ical and the other evidence, including the individual's complaints of pain or other symptoms and the adjudicator's personal observations. The rationale must include a resolution of any inconsistencies in the evidence as a whole and set forth a logical explanation of the individ- . ual's ability to work or, in the case of an individual under age 18 claiming benefits based on disability under title XVI, the individual's ability to function independently, appropriately, and effectively in an age-appropriate manner. " CASE LAW-Tidbits The circuits vary in their standards of how pain is to be evaluated. An excellent discussion of the law, circuit by circuit is contained in Bohr's Social Security Issues Annotated, by Sarah H. Bohr and Chantal J. Harrington (lames Publishing, c. 1998 with periodic updates). Some sections are attached to this article, and reprinted with express permission of the James Publishing House, www.jamespublishing.com. 1-800-440-4780. Avery v. Secretary of Health & Human Services 797 F.2d 19 (151 Cir. 1986) continues to be applied in the First Circuit, and its rationale is instructive for cases beyond its Circuit. It sets out when pain can constitute an additional limitation to reduce residual functional capacity. The Court in Avery required that the ALJ consider six factors to determine if the alleged pain adds an additional limitation. These factors are also contained in SSR 96-7p, and include fre- quency, duration and intensity of symptoms, effect of pain meditations, trIggering factors, etc. See Kratman v. Barnhart 436 F. Supp. 2d 300 (D.Mass. 2006): 1 r- I •• b" 795 . ,'., _ .. '. -.' - .-: '.~-.'.' "";.~. -" " " .... r Section BB NATIONAL SOCIAL SecURITY DISABIlITY LAW CONFERENCE "When assessing the credibility of a claimant's asserted subjective symptoms, the ALJ must consider a series of factors. Avery v. Secretary of Health and Human Services, 797 F.2d 19, 23 (1" Cir.1986). These factors are commonly referred to as the "Avery factors" and are outlined in Social Security Ruling 96-7p ("SSR 96-7p") as follows: 1. The individual's daily activities; 2. The location, duration, frequency, and intensity of the individual's pain or other symptoms; 3. Factors that precipitate and aggravate the symptoms; 4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. Treatment, other than medication, the individual receives or has received for relief of pai n or other symptoms; 6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. Kratman supra at page 308. The First Circuit confirms that pain constitutes a non-exertional impairment requiring that the sequential analysis of the case cannot stop with the grids. See also Perminter v. Bowen 765 F.2d 870, 872 (9th Circuit 1985.) In the Ninth Circuit, once a claimant produces medical evidence of an underlying impair- ment which could produce pain (although it need not be at the level testified to), the testimo- ny can be rejected only by showing specific, clear and convincing reasons. Smolen v. Chater 80 F.3d 1273, 1281 (9th Cir, 1996) Many cases win or fall with discussion of how ALJ can meet this burden. See, for example, Moisa v. Barnhart 367 F.3 882, (9th Cir (Cal.) 2004): "Here, Moisa offered evidence demonstrating-and the ALJ found-that Moisa suffered from a series of severe impairments, capable of causing pain. See Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.1996). Nevertheless, the ALJ rejected Moisa's pain testimony solely for lack of objective medical evidence corroborating it. He cited no evidence of malingering and made no findings that would allow us to conclude that he rejected the testimony on permis- sible grounds, such as a reputation for dishonesty, conflicts between the claimant's testimo- ny and his conduct, or internal contradictions in the testimony. See 20 eF.R. § 404.1529(c); Smolen, 80 F.3d at 1281; Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir.1991) (en bane). His rejection of Moisa's pain testimony was therefore clear error. See Light v. SSA, 119 F.3d 789, 792 (9th Cir.1997)." (emphasis added) Courts can determine that even though the ALJ erred in rejecting pain testimony, the denial of benefits will stand if the error was harmless. See Carmickle v. Commissioner (9th Cir, No. 05-36128, filed July 24,2008). In this case, Carmickle alleged disability based on back pain and mental impairments. Carmickle testified to constant pain with resulting limitations, and the ALJ rejected the testimony based on four factors: that the testimony was inconsistent with other activities including full time college attendance, claimant's receipt of unemployment 796 . -.: - .... - .--.:~. " • .• " .' ~-', -_.,:.".- .• :<.,': '. .. -..:.: ~-- : _. '.: ••. -' = F Pain as the Primary Impairment-Moving from the Subjective to the Objective Section BB benefits, his minimal treatment, and a doctor's contrary opinion. The Justices found that Carmickle had produced evidence of a medically established impairment, and thus the ALJ was bound by the"clear and convincing" standard in reviewing the pain testimony. The Court found that the ALJimproperly relied on receipt of unemployment benefits as a reason to dis- pute the pain, and further, that the conservative treatment received was not inconsistent with the pain and thus, also, not a "clear and convincing" reason to reject the testimony. However, the Court stated, "Because we conclude that two of the ALJ's reasons supporting his adverse credibility finding are invalid, we must determine whether the ALJ's reliance on such reasons was harmless error [citom.]" id. at page 9153 ... "The relevant inquiry in this context is not whether the ALJ would have made a different decision absent any error ., . it is whether the ALJ's decision remains legally valid, despite such error" id. This case was distinguished from others whether the ALJ gave no reasons for rejecting pain testimony. There is some solace in Carmickle's dissent, which contains an extensive discussion of the standards to be applied to determine when error is "harmless." and its rationale can be argued in other contexts. • Practice Tips Plan the pain testimony in advance. Prepare your client to describe his pain using the criteria set out in the regulations above: part of body, description of pain, intensity, fre- quency, triggering factors. Testimony has more impact if it can be connected to specific activities, so that the description of pain is not in a vacuum. Look at the adverse evidence and consider what an ALJ might rely on to discount pain testimony, and have your client explain the unfavorable evidence. For example, have him explain any treatment gaps, and whether they are connected to lack of funds. Explain any failure to follow prescribed care, such as unpleasant side effects or lack of transportation. Look at the Daily Activities Report and have your client explain any answers that could be construed as inconsistent with pain, such as regular shopping trips or socializing. Use lay witnesses. The spouse, neighbor or friend is an excellent source to describe pain behaviors and limitations. Make sure to lay a proper foundation, asking the wit- ness for his specific observations. These can include direct complaints, difficulty with activities, grimaces or other facial expressions, rubbing body parts, fatigue. This not only bolsters the claimant's testimony, it adds another layer on the ALJ's obligation if he chooses to discredit the testimony. • If the medical records do not describe pain, request a report or form from the treating physician which asks for the "objective" foundation for the pain, and addresses if the . . pain is consistent with the condition. Use sequelae of pain in forming hypothetical questions to the VE. l r 1 797 -.,.,--.-,-, .. -- ---------.-. l~ ••----------------------.- __ ..